Implications of Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (‘TUPE’). Transfer and Sponsorship Licence

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Implications and practice to transfer a sponsored employees visa - under TUPE Transfer.

In the event that the employee does not want to obtain a new visa – they would like to continue with their existing visa.

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Workers who change employer under TUPE or similar protection do not need to make a new application for permission. The new sponsor does not have to assign a new Certificate of Sponsorship (CoS) to the worker, provided:

1- the new sponsor has a valid sponsor licence in the relevant route and has confirmed that it accepts responsibility for the worker, and

2- the worker’s duties remain unchanged

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If the above scenario applies to the purchase of an old company by the new company than there will be no transfer of CoS or employee.

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Change of employment application will not be required

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When there is a change of employer or sponsor but the change is covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE arrangements or similar protection, provided the worker will continue working in the same occupation code assigned by their previous employer or sponsor.

When a business changes owner or another business takes over whole or part of it or a service it provides, its employees may be protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (‘TUPE’). In general terms, TUPE protection means that the employees’ jobs transfer to the new company and their terms and conditions of employment remain the same.

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If a sponsored worker moves to the new company under TUPE or similar protection, and the new employer / company already have an appropriate sponsor licence, they will, from the date of the move, take up full responsibility for their incoming foreign employee as their new sponsor, and must meet all of the associated duties. The new company must confirm that they will take responsibility for them via their SMS account.

Where workers are being moved to the new employer under TUPE or similar protection, but they do not already have a sponsor licence under the route needed to sponsor them, they must make an application for a sponsor licence.

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The new employer / company’s application for their sponsor licence must be made within 20 working days of the move taking place.

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As a new employer they must apply for and be granted their new sponsorship licence as the old company's licence is non-transferable. In fact, the old company must surrender their licence once the purchase / takeover of their company is concluded.

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The reporting restrictions will apply to both the old and new companies which has to be carried out in the prescribed manner and time.

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If the new company:

- does not make a valid application within 20 working days; or

- does make a valid application, but that application is refused

all of the workers who moved to the new employer / company will have their permission to work cancelled.